IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Criminal Action 2:12-CR-88

Judge Marbley

EVAN A. WILBER

REPORT AND RECOMMENDATION

The United States of America and defendant Evan A. Wilber

entered into a plea agreement whereby defendant agreed to enter a plea

of guilty to an information charging him with conspiracy in violation of

18 U.S.C. §371. On June 15, 2012, defendant, accompanied by counsel,

appeared for an arraignment. Defendant consented, pursuant to 28 U.S.C.

§636(b)(3), to enter a guilty plea before a Magistrate Judge. See United

States v. Cukaj, 2001 WL 1587410 at *1 (6th Cir. 2001) [Magistrate Judge

may accept a guilty plea with the express consent of the defendant and

where no objection to the report and recommendation is filed]; United

States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v.

Dees, 125 F.3d 261, 263-69 (5th Cir. 1997); United States v. Ciapponi, 77

F.3d 1247, 1251 (10th Cir. 1996). Defendant also waived the right to an

indictment in open court and after being advised of the nature of the

charge and of that right. See F.R. Crim. P. 7(b). 

During the plea proceeding, the undersigned observed the

appearance and responsiveness of defendant in answering questions. Based

on that observation, the undersigned is satisfied that, at the time the

guilty plea was entered, defendant was in full possession of defendant’s

faculties, was not suffering from any apparent physical or mental

illness, and was not under the influence of narcotics or alcohol. 

Prior to accepting defendant’s plea, the undersigned addressed

defendant personally and in open court and determined defendant’s

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competence to plead. Based on the observations of the undersigned,

defendant understands the nature and meaning of the charge returned in

the Information and the consequences of the plea. Defendant was also

addressed personally and in open court and advised of each of the rights

referred to in Rule 11 of the Federal Rules of Criminal Procedure. 

Having engaged in the colloquy required by Rule 11, the Court

concludes that defendant’s plea is voluntary. Defendant acknowledged

that the plea agreement signed by defendant, defendant’s attorney and the

attorney for the United States and filed on April 26, 2012, represents

the only promises made by anyone regarding the charge in the Information. 

Defendant was advised that the District Judge may accept or reject the

plea agreement and that, even if the Court refuses to accept any

provision of the plea agreement not binding on the Court, defendant may

nevertheless not withdraw the guilty plea. 

Defendant confirmed the accuracy of the material aspects of

the statement of facts supporting the charge. Defendant confirmed that

he is pleading guilty to Count One of the Information because he is in

fact guilty of the offense charged in the Information. The Court

concludes that there is a factual basis for the plea. 

The Court concludes that defendant’s plea of guilty to Count

One of the Information is knowingly and voluntarily made with

understanding of the nature and meaning of the charge and of the

consequences of the plea. 

It is therefore RECOMMENDED that defendant Evan A. Wilber’s

guilty plea to Count One of the Information be accepted. Decision on

acceptance or rejection of the plea agreement was deferred for

consideration by the District Judge after the preparation of a

presentence investigation report. 

In accordance with S.D. Ohio Crim. R. 32.1, and as expressly

agreed to by defendant through counsel, a written presentence

investigation report will be prepared by the United States Probation

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Office. Defendant will be asked to provide information; defendant’s

attorney may be present if defendant so wishes. Objections to the

presentence report must be made in accordance with the rules of this

Court. 

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file and

serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy thereof. 

F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to de

novo review by the District Judge and of the right to appeal the decision

of the District Court adopting the Report and Recommendation. See Thomas

v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981).

June 15, 2012 s/ Norah McCann King 

 Date Norah McCann King

 United States Magistrate Judge

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